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Volk V. Demeerleer Study Volk v. DeMeerleer Study Commissioned by: Washington State Legislature House Judiciary Committee December 1, 2017 UW School of Law Center for Law, Science and Global Health Volk v. DeMeerleer Study Research Team Tanya E. Karwaki, JD, LLM, PhD Research Associate, Center for Law, Science and Global Health Jaclyn Greenberg, JD, LLM (candidate) Annemarie Weiss, LLM Gavin Keene, JD (candidate) Faculty Supervisors Patricia C. Kuszler, MD, JD Charles I. Stone Professor of Law Faculty Director, Center for Law, Science, and Global Health Terry J. Price, MSW, JD Executive Director, Center for Law, Science, and Global Health VOLK V. DEMEERLEER STUDY TABLE OF CONTENTS I. Executive Summary ............................................................................................................................... 3 II. Comprehensive Review of the “Duty to Warn” and the “Duty to Protect” ............................................ 5 A. Background: The Tarasoff Case and the Duties to Endangered Third Parties ............................... 5 B. Review of Case Law and Legislative Provisions Across the United States ..................................... 7 1. Terminology with Respect to the “Duty to Protect” and the “Duty to Warn” ......................... 7 2. Summary of the National 50-State (plus District of Columbia) Legislative and Case Survey .. 8 a) Description of the Duty to Third Parties ............................................................................. 8 b) Who Has a Duty to Third Parties in the Context of Mental Health Care .......................... 11 c) Who Qualifies as a Potential Third Party Victim? ............................................................ 11 d) What Qualifies as Sufficient Threat to Trigger a Duty to Third Parties ........................... 12 e) How Is the Duty Discharged or Extinguished? ................................................................. 13 III. Washington State Case Law: An In-depth Review .............................................................................. 14 A. Petersen v. State of Washington, 100 Wn.2d 421, 671 P.2d 230 (1983) ....................................... 14 B. Washington’s Case Law on Duty to Third Parties in the Context of Mental Health ..................... 15 C. Volk v DeMeerleer ......................................................................................................................... 18 1. Summary of the Facts in Volk v. DeMeerleer .......................................................................... 18 2. The Washington State Court of Appeals Opinion .................................................................... 19 3. The Washington State Supreme Court Opinion ....................................................................... 20 4. Analysis of Volk v. DeMeerleer in the Context of National Law ............................................. 22 a) Special relationship ........................................................................................................... 22 b) Duty to control .................................................................................................................. 23 c) What constitutes a sufficient threat/danger? ..................................................................... 24 5. Cases Simultaneous, or Subsequent, to Volk ........................................................................... 25 6. Conclusion ............................................................................................................................... 27 IV. Factual Data on Mental Health Provider Capacity, Insurance Claims and National Practice Guidelines ............................................................................................................................................. 27 A. Treatment Bed Capacity ................................................................................................................ 27 B. Washington’s Mental Health Providers ......................................................................................... 30 C. Insurance claims, policy provisions, and rates related to Volk ..................................................... 31 1. There Have Been No Insurance Claims Filed as a Result of the Volk Decision ..................... 31 2. Insurance Policy Provisions and Rates Have Not Yet Been Affected Due to the Volk Decision ................................................................................................................................... 32 D. National Practice Guidelines and Standards................................................................................. 32 V. Qualitative Data from Consulting with Stakeholders ........................................................................... 33 A. Assessment of Whether Mental Health Service Providers May Be Changing Practices to Limit Exposure to the Potential Risks Created by the Volk Decision ..................................................... 34 1 1. Data from Consulting with Stakeholders--Changes to Clinical Documentation and Policies and Procedures........................................................................................................................ 34 2. Additional Changes to Practice .............................................................................................. 35 B. Data from Surveys of Mental Health Service Providers ................................................................ 35 C. Assessment of Legal and Practice Implications of State Law Standards Regarding Duty to Warn and Duty to Protect Pre- and Post-Volk .............................................................................. 40 1. Between Petersen and the 1987 amendments to RCW 71.05.120 and Volk, Most Stakeholders Thought the Duty Owed was Defined in RCW 71.05.120. ................................. 40 2. Pre-Volk Most Clinicians Thought the Duty Owed Applied in Inpatient and Outpatient Settings .................................................................................................................................... 40 3. Clinical Judgment was Part of Duty Pre-Volk ........................................................................ 40 4. Pre-Volk, Warning Was Not the Only Possible Action ........................................................... 41 5. After Volk There Is Confusion Regarding the Duty Owed By Mental Health Professionals .. 41 6. When the Volk Duty Begins Is Unclear ................................................................................... 42 7. Discharging the Duty Owed Under Volk ................................................................................. 42 8. When the Volk Duty Ends ........................................................................................................ 42 D. Additional Clinical Practice Implications post-Volk and Potential Detrimental Impact on Clinical Judgment .......................................................................................................................... 43 E. Mental Health Professionals’ Workforce Concerns ...................................................................... 44 F. Implications for Patient Access to Mental Health Services and Public Safety--Potential Impact on Patient Access to Mental Health Services ................................................................................. 44 G. Is the Public Safer After Volk? ....................................................................................................... 45 H. Legal Implications ......................................................................................................................... 45 1. Perspectives that the Law Did Not Change with Volk............................................................. 45 2. Perspectives that the Law Did Change with Volk and Stakeholders’ Suggestions for Corrections .............................................................................................................................. 46 3. Perceived Changes to Legal Practice ..................................................................................... 46 I. Stakeholder Responses to ESB 5800 .............................................................................................. 47 1. SB 5800 as Introduced ............................................................................................................ 47 2. Engrossed SB 5800 .................................................................................................................. 47 3. Stakeholder response ............................................................................................................... 48 J. Key Issues Raised by Stakeholders Beyond Those Addressed in the Appropriation ..................... 48 K. Stakeholder Meeting held on November 18, 2017, at University of Washington School of Law... 51 VI. Study Conclusions ................................................................................................................................ 51 2 I. EXECUTIVE SUMMARY In December, 2016, the Washington Supreme Court decided the Volk v. DeMeerleer case. This case dealt with the duty of outpatient mental health providers towards third parties who might be endangered by a patient. In this tragic case, a patient with a long history of mental illness, who had been treated periodically by a psychiatrist, murdered his former girlfriend and her son and then killed himself. Notably, the patient had not voiced a threat or homicidal ideation toward
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